Townsend v. Caldwell

1 Rob. 433

• Court: Supreme Court of Louisiana
• Decided: March 15, 1842
• Status: Published

Opinion

Garland, J.

This suit is brought to recover a balance owing for work and labor done on the St. Charles Theatre, in the year 1835, by the plaintiffs, who are carpenters. A written contract was entered into, which appears to have been lost, by which the defendant agreed to pay $1000, for the work; and it isadmitted tbaf he has paid all, except the sum of $346 21. The defendant excepted to answering the petition, on the grounds :

First, That a written contract is alleged to have existed, but no copy, or sufficient statement of its contents are given, nor any proof filed of the loss of the original.

Second, That admitting the allegations of the petition to be true, the plaintiffs cannot recover, nor maintain their action.

These exceptions were overruled, the defendant'filed no answer to the merits, a judgment by default was made final against him, and he appealed.

As to the first exception, it seems to us, that the contents of the alleged contract were sufficiently made known to enable the defendant to answer. The work to be performed, the price, the time when it was tobe completed, and other particulars, are given with accuracy. It does not appear to us that' any copy was necessary, to enable the defendant to shape his defence.

As to the loss of the contract, it was not necessary that proof of the loss should be offered previous to the trial.. It was alleged, and that was enough for the defendant to know, previous to joining issue.

We cannot see on what ground the defendant expected to sustain his second exception. The allegations of the petition very distinctly set forth the cause of action. Both exceptions were properly overruled.

The evidence very clearly sustains the plaintiffs’ demand.

In this court, the defendant has filed a plea of prescription ; but it cannot avail him. The plaintiffs are not the description of workmen and laborers, spoken of in the article 3499 of the Code. 6 La., 591. 10 lb., 339.

Judgment affirmed.